State v. Good, s. 17276

• Decision Date: 04 December 1992
• Docket Number: Nos. 17276,17873,s. 17276
• Citation: 851 S.W.2d 1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sandra GOOD, Defendant-Appellant. Sandra GOOD, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 1

851 S.W.2d 1

STATE of Missouri, Plaintiff-Respondent, v. Sandra GOOD, Defendant-Appellant.

Sandra GOOD, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 17276, 17873.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 4, 1992.

Marcie W. Bower, Columbia, for appellant.

William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

MAUS, Judge.

Count I of an information alleged defendant Sandra S. Good committed the class D felony of resisting arrest in that when Randy Evans, a law enforcement officer, was making an arrest of defendant she resisted arrest by using or threatening to use violence or physical force. § 575.150. Count II was identical except it named Barry Duncan as the law enforcement officer. Count III charged defendant with armed criminal action in resisting arrest as charged in Count I. § 571.015. A jury found defendant guilty on the three counts. The trial court sentenced defendant as a prior offender to imprisonment for three years on each count. The sentences on Counts I and II are to run concurrently. The sentence on Count III is to run consecutively to the other two sentences. She appeals from those convictions.

Defendant was granted an evidentiary hearing on her Rule 29.15 motion. That motion was denied. She appealed from that denial. The two appeals were consolidated for disposition by this court. Defendant has briefed no issue concerning the denial of her postconviction motion. That appeal has been abandoned. State v. Barnard, 820 S.W.2d 674 (Mo.App.1991). The judgment of the motion court denying defendant's motion under Rule 29.15 is affirmed.

Defendant states two points on her direct appeal. The following is a resume of the facts sufficient to serve as the background for consideration of those points. A warrant was issued for the arrest of defendant for the felony of tampering with a witness. § 575.270. Officer Randy Evans attempted to execute that warrant. He approached the defendant. She threatened Evans with a knife. Officer Barry Duncan arrived to assist. Defendant drew a second knife and accosted Duncan. Defendant eventually capitulated and was arrested.

Defendant's first point is "[t]he trial court erred in overruling appellant's motion to dismiss one of the resisting arrest counts and in trying, convicting and sentencing appellant on Counts I and II in that Appellant was subjected to double jeopardy because both resisting arrest charges were based on a continuing course of conduct which was uninterrupted." She raised this issue by pretrial motion and has preserved it for review. She asserts this error improperly placed her in "double jeopardy." She contends she was subjected to multiple punishments for the same offense when such punishments were not prescribed by the legislature. She relies upon the following quotations: "Beyond simply protecting defendants from successive prosecutions for the same offense after an acquittal or a conviction, the Fifth Amendment also prohibits multiple punishment for the same offense.... The prohibition against multiple punishment is 'designed to ensure that the sentencing discretion of the court is confined to the limits established by the legislature.' ..." Hagan v. State, 836 S.W.2d 459, 462 (Mo. banc 1992). (Citations omitted.) "Legislative intent regarding cumulative sentences is determined first by examining the statutes under which the defendant was convicted." State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992). She then observes that § 575.150 ¹ defining resisting arrest is silent concerning multiple or cumulative punishments. She argues the issue is controlled by a different statute. The relevant part of that statute reads:

"When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if

(1) One offense is included in the other, as defined in section 556.046; or

(2) Inconsistent findings of fact are required to establish the commission of the offenses; or

. . . . .

(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses." § 556.041.

Defendant concludes she was engaged in a continuous course of conduct that was uninterrupted. The State replies: "Contrary to appellant's contention, subsection (4) of this statute does not prohibit multiple punishments for separate offenses arising out of a continuing course of conduct."

The constitutional bar of the Fifth Amendment against Double Jeopardy has multiple facets.

" ' * * * [T]he Fifth Amendment guarantee against double jeopardy * * * has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. * * *.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)." State v. Thompson, 610 S.W.2d 629, 634 (Mo.1981), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981). (Omissions in original.)

The prohibition against successive prosecutions for a single offense was expressed in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). That case also stated the familiar test for determining whether there are two offenses or one. ² That prohibition against successive prosecutions was expanded in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which in turn was refined by United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). A sagacious review of this prohibition is found in McIntyre v. Trickey, 975 F.2d 437 (8th Cir.1992). A study of McIntyre is mandatory for an understanding of the doctrine of double jeopardy.

The limitation on multiple punishments for the same offense in a single prosecution has been defined in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). ³

The arguments of the parties in this case center upon the identification of what conduct constitutes a separate or single offense. That identification is discussed at length in Horsey v. State, 747 S.W.2d 748 (Mo.App.1988).

"The issue raised by movant's contention is whether or not the evidence established distinct offenses even though each was a violation of the same statute. The general rule has been stated:

'To determine whether a defendant has been subjected to double jeopardy, Missouri courts follow the separate or several offense rule rather than the same transaction rule. State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978). Under this rule, "multiple convictions are permissible if the defendant has in law and in fact committed separate crimes." Id. The applicable test, to determine whether several charges are identical, is "whether each offense necessitates proof of a fact which the other does not." State v. Charles, 612 S.W.2d 778, 781 (Mo. banc 1981), cert. denied, 454 U.S. 972, 102 S.Ct. 522, 70 L.Ed.2d 392 (1981).'

State v. Lulkowski, 721 S.W.2d 35, 37 (Mo.App.1986) (emphasis added). Also see Cook, Constitutional Rights of the Accused, § 23:8 (2d ed. 1986).

However, this stated test in some instances is difficult of application. It assumes identification of a separate offense that requires proof of a fact not required by another offense. This inadequacy is apparent when the conduct of a defendant is continuous or involves more than one item of property or more than one victim.

In such cases an appropriate test is what, under the statute, the legislature 'intended to be the allowable unit of prosecution....' United States v. Marzano, 537 F.2d 257, 272 (7th Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977). Or stated another way, 'once Congress has defined a statutory offense by its prescription of the "allowable unit of prosecution", ... that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct "offenses" under the statute depends on this congressional choice.'

Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 2181-2182, 57 L.Ed.2d 43, 57 (1978) (citation omitted).

. . . . .

The legislature may expressly declare the limits of a unit of prosecution. See § 556.041. [Footnote omitted]. When it has not done so, the cases afford little guidance in determining the intent of the legislature. In absence of an indication of a contrary intent, a construction of leniency has been favored. Bell v. United States, [349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ], supra. On the other hand, an expressed or obvious intent to establish substantial punishment for an offense favors a construction that punishes each act in contravention of the statute. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The language of the statute may indirectly establish the intent of the legislature. For example, 'Section 195.020 makes it unlawful for "any person ... to ... possess ... any controlled or counterfeit substance...." (Emphasis supplied). The use of the word "any" indicates that each separate substance possessed is an unlawful act.' State v. Williams, [542 S.W.2d 3 (Mo.App.1976) supra, at 5. An element of obvious importance is what is considered the gravamen of the offense." Horsey at 750-752.

A canon of statutory construction has been succinctly stated and applied in determining a unit of prosecution.

"The punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth...